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COMMONWEALTH v. CIMASZEWSKI (04/22/75)

decided: April 22, 1975.

COMMONWEALTH
v.
CIMASZEWSKI, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, Nos. 0360, 0361, and 0362, in case of Commonwealth of Pennsylvania v. John J. Cimaszewski.

COUNSEL

William F. Coyle, and Abrahams & Loewenstein, for appellant.

John Cooper, Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring Opinion by Cercone, J.

Author: Van Der Voort

[ 234 Pa. Super. Page 300]

Appeal is taken from an Order denying, without a hearing, appellant's petition for post-conviction relief.*fn1 At trial on August 28, 1972, appellant pled guilty to charges of burglary, aggravated robbery, and aggravated assault and battery. Sentencing followed on November 21, 1972. On August 16, 1973, appellant filed his petition for post-conviction relief, which petition he augmented by an amended petition.

The applicable statute, supra, provides:

"If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner." (ยง 1180-9).

Thus, "[t]he right to an evidentiary hearing on PCHA review is not absolute." Commonwealth v. Hayden, 224 Pa. Superior Ct. 354, 356,

[ 234 Pa. Super. Page 301307]

A.2d 389, 390 (1973). It is our duty to carefully study the record, appellant's petition for relief, and the Commonwealth's answer.

Appellant's first argument is that his trial counsel was ineffective.*fn2 He now alleges that the attorney's advice to plead guilty was against appellant's better judgment. Further, appellant argues that his trial counsel promised him a lesser sentence if he pled guilty, together with credit for time served and an allowance to attend a treatment center. The record shows that appellant, in response to his attorney's questions, understood the charges against him, the maximum sentences therefor, his absolute right to jury trial, and the presumption of innocence applicable to him. But the record is silent as to appellant's present claims, which, if true, would entitle appellant to a hearing. See Commonwealth v. Young, 218 Pa. Superior Ct. 272, 275 A.2d 866 (1971); and Commonwealth v. Rush, 212 Pa. Superior Ct. 437, 243 A.2d 159 (1968).

Although statements were made at trial which are contrary to appellant's present argument regarding ineffective counsel, we find that the record does not necessarily refute and make invalid and frivolous appellant's claim as to ineffectiveness of counsel, and recognizing that this issue is eligible for presentation at the post-conviction stage (see ...


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